Transitional Justice and Reconciliation Commission

of the Framework Agreement on the Bangsamoro

Frequently Asked Questions

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I. The Transitional Justice and Reconciliation Commission (TJRC)
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What is the status of the TJRC?
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The Annex on Normalization of the Framework Agreement on the Bangsamoro FAB,

signed on January 25, 2014, provides for the creation of the Transitional Justice and
Reconciliation Commission (TJRC) in order to protect and to enhance the right of the
Bangsamoro people and other communities in the Bangsamoro to live in dignity.

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What is the mandate of the TJRC?
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The TJRC is mandated to undertake a study and to make recommendations with a view to
promote healing and reconciliation of the different communities that have been affected by the
conflict.
The TJRC will propose appropriate mechanisms:
to address legitimate grievances of the Bangsamoro people
to correct historical injustices
to address human rights violations,
to address marginalization through land dispossession

In addition, the TJRC can recommend immediate interventions to be made in support of

reconciliation and the healing of the physical, mental, and spiritual wounds of the conflict. To this
end, the TJRC may recommend measures to address the causes of the conflict and to prevent
their recurrence.

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Who are the members of the TJRC?
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As stipulated in the Annex on Normalization, the TJRC consists of three members. It is

headed by a chairperson, who is an international expert of recognized independence, probity,
and integrity, jointly selected by the Parties. The GPH and MILF have each nominated a
representative and an alternate to the TJRC.

The head of the TJRC is a Swiss national, Ms. M Bleeker, Special Envoy and Head of the
Task Force on Dealing with the Past and the Prevention of Atrocities (TF DwPA) of the Swiss
Federal Department of Foreign Affairs. The GPH and MILF representatives to the TJRC are
Atty. Cecilia Jimenez and Atty. Ishak Mastura, respectively.
The alternate representatives of the GPH and MILF to the TJRC are Atty. Mohammad Al-Amin
Julkipli and Atty. Abdul Rashid Kalim, respectively.

In addition, the Parties appointed another Swiss national, Mr. Jonathan Sisson, who is also a
member of the FDFA TF DwPA, as senior adviser to the TJRC.

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How does the TJRC function?
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The TJRC meets on a regular basis. It has formulated its own rules of procedure and maintains
an office in Manila that operates with a small support staff. A TJRC Program manager is based
in Cotabato.

The main function of the TJRC is to undertake a study and to produce a set of
recommendations, as outlined in its mandate (see above). In order to do, the TJRC is
empowered to conduct consultations, assessments, or surveys, it may also study local and
international best practices in the field of transitional justice and consult with local and
international experts.

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To whom does the TJRC report?
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The TJRC reports directly to the Panels. Within six months of its formal launch, it will submit a
preliminary report to the Panels. Its final report will include recommendations and shall be
submitted within one year after its formal launch (see below).

The TJRC coordinates its activities with the Joint Normalization Committee (JNC) and the
bodies and entities referred to in the normalisation framework.

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How long will the TJRC operate?
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The formal launch of the TJRC took place at the meeting of the Panels in Kuala Lumpur on
27-29 September 2014. The TJRC realized its first public events in Cotabato on October 4,
2014 and in Manila on October 11, 2014 with the active participation of the Panel chairs.

The TJRC shall complete its final report and submit it to the Panels by end of September
2015.

After this time, the TJRC shall remain available for consultation on issues concerning
transitional justice and reconciliation. The TJRC shall be deemed abolished upon the
signing of the Exit Agreement.

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II. The Terminology of Transitional Justice
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What is transitional justice?

As formulated in his 2004 report on the

General defines transitional justice
associated with a societys attempt to
committed in the past, in order to
reconciliation.1

rule of law and transitional justice, the UN Secretary

as the full range of processes and mechanisms
come to terms with a legacy of large-scale abuses
achieve accountability, serve justice, and achieve

In the same report, the UN Secretary General describes the mechanisms of transitional justice
in more specific terms; transitional justice employs both judicial and non-judicial
mechanisms, including individual prosecutions, reparations, truth-seeking, institutional
reform, vetting and dismissals, or a combination thereof.2

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Transitional Justice or Dealing With the Past?
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As the designation for processes and mechanisms to address a legacy of past human rights
abuses, the term Transitional (TJ) itself has also been called into question. Some practitioners
object to the reference to justice, suggesting, as it does, that the focus of transitional justice is
limited to criminal sanctions. Others question the use of the word transitional and point out the
difficulties of determining when a transition begins and when it ends.

The term Dealing With the Past has been suggested as an alternative. The proponents of
Dealing With the Past (DWP) argue that the term has broader outreach and acceptance, since
every member of society has a past and therefore has a stake in the future. Both terms have
drawbacks, however; whereas some might think that transitional justice is only for lawyers,
other might consider dealing with the past as an occupation for historians.

The TJRC has a preference for the term Dealing With the Past, but uses both terms
interchangeably.

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What is the conceptual framework for Transitional Justice/Dealing With the Past?
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Although there is no standard model for transitional justice, in recent years a number of
precedents have been established through the work of special rapporteurs and experts of the
United Nations on the issues of reparations, impunity, and best practices in transitional justice.3

One of the most significant developments in this regard has been the progress made toward
establishing standards in the struggle against impunity. The principles against impunity were
1

Report of the UN Secretary General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict
Societies (S/2004/616), p. 4. Available at: http://www.unrol.org/files/2004%20report.pdf
2

Ibid. p. 4. Available at: http://www.unrol.org/files/2004%20report.pdf

See the reports submitted by Theo Van Boven (E/CN.4/Sub.2/1993/8; E/CN.4/Sub.2/1996/17; E/CN.4/1997/104)
and Cherif Bassiouni (E/CN.4/2000/62) on reparations. Concerning best practices in transitional justice, see the
analytical study on human rights and transitional justice (A/HRC/12/18 and A/HRC/12/18/Add.1), prepared by the
OHCHR in 2009. With regard to the reports on impunity, see footnotes 4 and 5 below.

formulated by Louis Joinet in a report to the UN Sub-Commission in 19974 and were later
revised by Diane Orentlicher in 2005 at the behest of the Commission on Human Rights.5
Known as the Joinet/Orentlicher principles, the principles against impunity describe a
conceptual framework for transitional justice by defining the rights of victims and the
obligations of the State to provide redress for serious violations of international human rights
law and international humanitarian law.

What are the principles against impunity?

The principles against impunity identify four key areas of activity that complement one another
thematically and practically in the struggle against impunity: The Right to Know, the Right to
Justice, the Right to Reparation, and Guarantees of Non-Recurrence. Taken together, the
principles against impunity form the components of a holistic strategy for transitional justice.

What is the Right to Know?

The right of victims and of society at large to know the truth

The duty of the State to preserve memory

The Right to Know is based on the right of individual and collective victims and on the part
of society at large to know the truth about past events and the circumstances that led to the
perpetration of massive or systematic human rights violations, in order to prevent their
recurrence in the future. It involves an obligation on the part of the State to undertake
measures, such as securing archives and other evidence, to preserve collective memory from
extinction and so to guard against the development of revisionist arguments.
To ensure this right, the Joinet/Orentlicher principles propose the creation of extra-judicial
commissions of inquiry (in practice, often called truth or truth and reconciliation
commissions). The commissions themselves serve a twofold purpose: 1) to dismantle the
administrative machinery that led to abuses in the past, in order to ensure that they do not recur;
and 2) to preserve evidence for the judiciary. The second measure often entails gathering,
preserving, and ensuring the access to archives and information relating to serious human
rights violations.

What is the Right to Justice?

The right of victims to a fair remedy

The duty of the State to investigate, prosecute, and duly punish

The Right to Justice implies that any victim can assert his or her rights and receive a fair and
effective remedy, including the expectation that the person or persons responsible will be held
accountable by judicial means and that reparations will be forthcoming. The Right to Justice
also entails obligations on the part of the State to investigate violations, to arrest and
4

E/CN.4/Sub.2/1997/20/Rev 1. Available at:

http://193.194.138.190/Huridocda/Huridoca.nsf/0/a0a22578a28aacfc8025666a00372708?Opendocument
5The

revision (E/CN.4/2005/102/Add.1) focused on identifying best practices in combating impunity and did not
significantly re-formulate the principles themselves.
Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/109/00/PDF/G0510900.pdf?OpenElement

prosecute the perpetrators and, if their guilt is established, to punish them. Domestic courts
have primary responsibility to exercise jurisdiction in this regard, but international or
internationalized criminal tribunals may exercise concurrent jurisdiction, when necessary, in
accordance with the terms of their statutes.
The Right to Justice imposes restrictions upon certain legal practices pertaining to prescription,
amnesty, right to asylum, extradition, non bis in idem, due obedience, official immunity, and
other measures, in so far as they may be abused to obstruct justice and benefit impunity.

What is the Right to Reparation?

The right of individual victims or their beneficiaries to reparation

The duty of the State to provide satisfaction

The Right to Reparation entails measures for individual victims, including relatives or
dependents, in the following areas:
- Restitution, i.e. seeking to restore the victim to his or her previous situation;
- Compensation, i.e. for physical or mental injury, for lost opportunities with respect to
employment, education, and social benefits, for moral damage due to defamation, and for
expenses related to legal aid and other expert assistance;
- Rehabilitation, i.e. medical care, including physiotherapy and psychological treatment.

The duty of the State to provide satisfaction pertains to collective measures of reparation.
These may involve symbolic acts, such as an annual homage to the victims, the establishment
of monuments and museums, or the recognition by the State of its responsibility in the form of a
public apology, that discharge the duty of remembrance and help to restore victims' dignity.
Additional measures in this regard foresee the inclusion of an accurate account of the violations
that occurred in public educational materials at all levels.

What are the Guarantees of Non-Recurrence?

The right of victims and society at large to protection from further violations
The duty of the State to ensure good governance and the rule of law

The Guarantee of Non-Recurrence focuses on the need to disband para-military armed groups,
to repeal emergency laws, and to remove senior officials from office who are implicated in
serious human rights violations. It also foresees the reform of laws and State institutions in
accordance with the norms of good governance and the rule of law. In particular, it regards the
reform of the security sector and of the judiciary as priorities. With regard to para-military
groups, it makes reference to the process of disarmament, demobilization, and reintegration
of former combatants with special attention to be paid to the demobilization and social
integration of former child soldiers. The vetting of public officials and employees should
comply with the requirements of due process of law and the principle of non-discrimination. In
addition, civil complaint procedures should be introduced.

III. The Process of Transitional Justice/Dealing With the Past

What does a process of TJ/DWP look like?

As a means of visualizing a process of TJ/DWP, the TJRC has adopted and slightly revised a
diagram developed by the the Swiss Federal Department of Foreign Affairs in collaboration with
swisspeace.

The diagram illustrates some of the main mechanisms and procedures associated with the four
principles cited. In addition, the diagram also attempts to illustrate the transformative dimension
of transitional justice as part of a political and social process of democratization in post-conflict
societies.

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Transitional justice/dealing With the Past is represented in the diagram by four concentric
circles.
The innermost circle depicts the victim- and perpetrator-oriented perspective of transitional
justice. As defined in the Basic Principles and Guidelines on Reparation, victims are persons
who individually or collectively suffered harm through acts or omissions that constitute gross
violations of human rights.6 While categories exist to define war crimes, crimes against
humanity and genocide, there is no single normative definition of a perpetrator, as this
qualification will often vary according to domestic legislation. Nevertheless, it can be said in
general terms that transitional justice is designed to address the needs of victims and the
accountability of perpetrators.

The central circle represents the four principles of the conceptual framework and reflects the
particular dynamics relating to victims and perpetrators mentioned above. Those mechanisms
and procedures that principally address the needs of victims are located in the upper part of the
circle, while those focusing on the accountability of perpetrators are located in the lower part.
Concrete activities are listed for each of the four areas, the idea being that, depending on the
context and circumstances, any one of these activities in any of the four areas might be an entry
point for transitional justice. Moreover, it should be noted that there are linkages between the
different activities in the different areas. For example, the preservation of archives is important
for the realization of both the Right to Know and the Right to Justice. The same holds true for
witness protection, which is necessary not only in connection with war crimes trials, but also in
the search for missing persons. Ideally, a comprehensive and integrated approach to transitional
justice would build upon these and other linkages to create momentum and gradually widen the
circle to include other initiatives.

The intermediary circle represents the most immediate long-term goal of strengthening the
rule of law by combating impunity. Significant progress made in any one or more of the four
areas, such as the realization of a truth commission in connection with the Right to Know or the
successful introduction of reforms to the security sector in connection with the Guarantee of
Non-Recurrence, will not only provide satisfaction and ensure accountability, but it will also
serve to strengthen public confidence in State institutions. Obviously, transitional justice can
only contribute in part to the larger task represented here, but the impact of these initiatives,
which may involve implementation on an international, national, or local level (or a combination
thereof), can be measured for both their immediate and long-term effects.

The outermost circle is defined by the parameters of reconciliation and prevention of serious
and systemic abuses in the future. This is again a long-term goal, for which a societal process of
transitional justice is a necessary pre-requisite. Impact measurement is more difficult here, but
the key concept is conflict transformation. By strengthening the rule of law and contributing to
the struggle against impunity, transitional justice is creating conditions, in which other means
become available to address social conflict. Even when the root causes of conflict continue to
persist, the institutions and mechanisms supported by transitional justice as well as the
6

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law. A/RES/60/147. para. 5.8.

modalities employed and lessons learned will contribute to establish democratic norms of
tolerance and power-sharing that reflect not only the social, economic, and ethnic diversity of a
country, but also the need to involve women in the decision-making process.

The transformative dimension also finds expression in the transformation of social and
political identities. If the victim or perpetrator identity was the predominant one at the beginning
of a process of transitional justice, it should change gradually as the process proceeds. The
experience of being a victim or perpetrator belongs to ones personal biography, but it is no
longer the dominant social or political identity. Instead, it is replaced by the new identity of being
a citizen of society with the rights and duties of citizenship as part of the new social contract.

Finally, it should be added that the diagram may also be used as an analytical tool to identify the
activities of international, national, and local actors in the four principal areas. Depending on the
context, an analysis of certain areas, such as the Right to Know or the Right to Justice, may
reveal a diversity of actors on different levels, while other areas, for example the Right to
Reparation, show hardly any activity at all. Using the diagram as a mapping tool is therefore not
only useful for assessment purposes, but also as a strategic instrument to identify entry points
and potential partners around specific transitional justice issues. Based on this analysis, a
realistic and comprehensive strategy for transitional justice can be developed, reflecting the
contingencies of political context, local culture, ownership, sequencing, and budgetary priorities.

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